• Andrew Tettenborn

Brussels busybodies behave like Star Wars Galactic Senate in Poland’s judiciary feud

All eyes in the last couple of days have been on the European Union in Italy, the third biggest Eurozone economy, and on its unashamed attempt to suppress the budget the Italian people wanted and it didn’t. Unfortunately, however, this has overshadowed what happened last week in Poland. That, if anything, should be a good deal more alarming.

Poland, if you need reminding, is in serious constitutional difficulties. The ruling Law and Justice party, which has clear popular support, has passed a law compulsorily retiring a large number of its senior judges. The regime says these judges are dinosaurs obstructing progress. Its opposition says the real aim is to supplant them with judicial poodles who will do as they are told.

Who is right is not easy to determine; and in any case it arguably doesn’t matter. What is clear is that the EU has seen this as a neat opportunity to muscle in and take sides in an internal political argument. Moreover, it has done so not politically (it being clear that any attempt to discipline Poland under Article 7 of the EU Treaty would be vetoed by Hungary), but legally.

Things came to a head last Friday, when the European Court of Justice in a brief judgment (available here, unfortunately only in French) peremptorily ordered Poland immediately to disapply the law.

The EU has seen this as a neat opportunity to muscle in and take sides in an internal political argument.

This is disconcerting, for at least three reasons. For one thing, there’s an uncanny air of mission creep in any claim that Euro-law should potentially have the ability to control judicial appointments in member States. Apart from the tendentious Charter of Fundamental Rights, which isn’t meant to affect matters under national control, the basis is an obscure provision in Article 19 of the EU Treaty requiring member States to ensure effective protection of rights under EU law.

The argument is that this gives the EU court a kind of roving commission to oversee national judicial appointments because … somewhere, sometime, one of these judges might have to make a decision about EU rights. Draw your own conclusion.

That’s bad, but it gets worse. If you look at it, last Friday’s decision was a mere interim order. It wasn’t a decision that Poland was in breach of EU law: that very much remains to be established (if true). It wasn’t even a decision that Poland might well be in breach (in the EU lawyers’ impenetrable Latin, that there was a fumus boni juris – a whiff of a good claim): the court admitted it didn’t have much of a clue whether it was or not.

Instead it was essentially a decision that this outlandish national development had to be stopped just in case this might be a situation where the EU had the right to intervene, to keep things for the moment as the EU wished. In other words, democratic national constitutional arrangements can now be suspended at a flick of the EU judicial pen on the basis of a vague future challenge of doubtful validity. If ever there was an event to make one feel grateful for Brexit, this is it.

If ever there was an event to make one feel grateful

for Brexit, this is it.

Third, slightly worryingly the exercise appears to have worked. After a few vaguely defiant noises, the Polish government appears to have knuckled under, and limited itself to saying it will appeal and hope for success there (some chance). To the delight of the Euro-establishment in Warsaw and elsewhere, not to mention the Eurocracy in Brussels, it is business as normal again: the retired judges have been discreetly unretired and returned to their desks.

You may not like the Law and Justice Party: it’s an acquired taste, and the Poles I talked to when visiting a university city in the country last month hadn’t acquired it, preferring to characterise the party as a bunch of self-obsessed incompetents. But that is beside the point.

That the EU should see itself as a constitutional arbiter rather like the Galactic Senate in Star Wars, entitled to intervene in national political disputes of this kind, is one of the best arguments for Brexit, not to mention Polexit, that you can find.

As, indeed, my Polish interlocutors agreed. They might not like Law and Justice. But (they said) they were perfectly able to vote them out themselves. Poland had every right to be left alone to deal with its own problems without this kind of patronising outside intervention by the busybodies from Brussels.

(Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as UKIP’s candidate in Bath).